April 20, 1998
PROPOSED ALTERNATIVE MEDICINAL CANNABIS LAW FOR COLORADO
Compassionate Therapeutic Cannabis Act
Be it Enacted by the People of the State of Colorado:
The constitution of the state of Colorado, is amended BY THE ADDITION OF A NEW ARTICLE to read:
Section 1. Purpose. The goal of this article is to allow compassionate therapeutic cannabis use by patients under advice from their physicians in the treatment of medical conditions. To clarify the intent of this amendment, the article eliminates the term marihuana from all Colorado statutes and mandates the use of accurate terminology based on the historic uses and varieties of Cannabis sativa. The clarification of the former definition of marihuana necessitates the treatment of industrial hemp based on its historic use as an agricultural product. The article creates the therapeutic cannabis commission to assist in the implementation of this article. The article does not provide for the use of cannabis by any person other than a patient nor does it allow the use of cannabis by minor patients unless they meet the requirements to be set forth by the therapeutic cannabis commission pursuant to Section 9 (4) (b) of this article.
Section 2. Definitions. For the purposes of this
article, unless the context otherwise requires:
(1) “Adequate Supply” means the amount of therapeutic cannabis necessary to assure that a patient can fulfill the dosage and frequency requirements recommended by a physician for treatment of a medical condition.
(2) “Cannabis” means all parts of the plant Cannabis sativa, whether growing or not, the seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or its resin, containing greater than 1% concentration of tetrahydrocannabinol. Such term does not include cannabis concentrate or hemp.
(3) “Cannabis concentrate” means hashish or any other extraction, chemical synthesis, compound, manufacture, salt, derivative, mixture, or preparation of cannabis that increases the concentration of THC beyond the natural concentration contained in the cannabis. Such term does not include cannabis or hemp.
(4) “Commission” means therapeutic cannabis commission.
(5) “Compassionate” means having a sympathetic awareness of another person’s suffering along with a desire to alleviate it.
(6) “Hemp” means the following parts of the plant Cannabis sativa: stalks, fiber produced from such stalks, oil or cake made from the seeds of the plant, sterilized seed of the plant which is incapable of germination. Hemp includes viable seed if such seed will produce mature plants that contain 1% or less concentration of tetrahydrocannabinol and such seed is approved by the governor or his or her appointed representative. Hemp also includes Cannabis sativa plants cultivated exclusively for industrial purposes and grown from seed approved by the governor or his or her appointed representative.
(7) “Medical conditions” include, but are not limited to: cancer, acquired immune deficiency syndrome (AIDS), glaucoma, positive status for human immunodeficiency virus, multiple sclerosis, epilepsy, chronic pain, cachexia (wasting syndrome), and nausea caused by chemotherapy and radiation therapy.
(8) “Patient” means a person residing in Colorado who is under the care of a physician for a medical condition and who has been advised by their physician that cannabis may be beneficial in the treatment of the symptoms of the medical condition or of the side-effects caused by other treatments.
(9) “Physician” means a person licensed to practice medicine in Colorado by the state board of medical examiners or its successor agency under the provisions of the Colorado Revised Statutes.
(10) “Primary caregiver” means a person designated by the patient who has significant responsibility for managing the well-being of that patient.
(11) "Tetrahydrocannabinol" means delta-9 tetrahydrocannabinol or THC.
(12) “Therapeutic cannabis” means cannabis intended for use in treatment of medical conditions by patients.
(13) “Therapeutic cannabis dispensary” means a state agency, non-profit corporation, physician, or pharmacy that is licensed by the commission, pursuant to Section 9 (2), to acquire, cultivate, possess, transport, and distribute therapeutic cannabis for the purpose of lawfully supplying patients with an adequate supply of therapeutic cannabis.
(14) “Therapeutic cannabis use” means the lawful use, acquisition, cultivation, possession, or transportation of an adequate supply of therapeutic cannabis by a patient.
Section 3. General Assembly – Duty to Amend Statutes.
(1) (a) The general assembly shall amend all statutory laws and regulations of the state of Colorado previously enacted concerning or relating to marihuana, marijuana and marihuana concentrate to conform to the provisions of this article. This shall include eliminating the terms marijuana and marihuana and replacing such terms with the appropriate terms (cannabis, cannabis concentrate or hemp) as defined in Section 2 of this article.
(b) If the general assembly does not amend such statutes to conform to the provisions of this article by May 15, 2000, such statutes will be voided and of no effect, except as provided herein.
(c) All other parts of such statutes shall otherwise remain in effect.
(2) Until such time that the general assembly amends statutes, as directed
in Section 3 (1) (a), or until such time that those statutes are voided,
as directed in Section 3 (1) (b), any action that conforms to the provisions
of this article shall be an exception to the state’s criminal statutes.
These actions include, but are not limited to:
(a) a patient who engages in therapeutic cannabis use;
(b) a primary caregiver who acquires, cultivates, possesses, transports, or distributes therapeutic cannabis for the purpose of supplying patients with an adequate supply of therapeutic cannabis;
(c) a person who cultivates or processes hemp for industrial purposes.
(3) The provisions of Section 5 and Section 6 shall be effective immediately upon proclamation of the governor that this amendment has been approved by a majority of the votes cast.
Section 4. Declaration of Policy.
(1) The people find and determine that the laws of the state of Colorado shall always:
(a) Use the terms cannabis, cannabis concentrate, and hemp, as defined in this amendment, and shall not use the words “marijuana” or “marihuana”;
(b) Conform to the principles and limitations embodied in this constitution;
(c) Allow therapeutic cannabis use by patients;
(d) Treat therapeutic cannabis either equally or less restrictively than the principles and limitations embodied in this article;
(e) Allow primary caregivers and therapeutic cannabis dispensaries to acquire, cultivate, possess, transport, and distribute therapeutic cannabis for the purpose of lawfully supplying patients with an adequate supply of therapeutic cannabis;
(f) Protect the right of physicians to recommend the use of therapeutic cannabis to their patients;
(g) Allow licensed therapeutic cannabis dispensaries to operate;
(h) Treat hemp either equally or less restrictively than commercially produced cereal and fiber crops under the laws of the state of Colorado;
(i) Treat cannabis and cannabis concentrate either equally or less restrictively than the 1996 Colorado Revised Statutes regarding marijuana, marihuana, or marijuana concentrate.
Section 5. Immunity from Prosecution -- Affirmative Defense.
(1) Any person who had a reasonable belief that his or her actions conformed to the provisions of this article shall be immune from prosecution for offenses relating to this article.
(2) Any person charged with a violation of state law related to marihuana, marijuana, marihuana concentrate, cannabis, cannabis concentrate or hemp may raise an affirmative defense to such charge that their actions conform to the intent and or provisions of this article.
(3) In all trials in which an affirmative defense is raised, notwithstanding the possible penalty for the offense, the defendant shall be entitled to a trial by jury.
Section 6. Protection of Physicians, Patients, and Primary
(1) No physician shall be subject to arrest or prosecution, nor penalized in any manner, nor denied any right or privilege, for providing a professional opinion or written recommendation to a patient that advises therapeutic cannabis use in the treatment of a medical condition.
(2) (a) It shall be lawful for a patient to engage in therapeutic cannabis
(b) A patient shall not be subject to arrest or prosecution, nor penalized in any manner, nor denied any right or privilege, for therapeutic cannabis use in conformance with the provisions of this article.
(c) A written recommendation from a physician advising therapeutic cannabis use or a copy of the patient’s pertinent medical records shall be prima facie evidence that the patient is in conformance to the provisions of this article.
(3) A patient may designate any person as a primary caregiver who has
significant responsibility for managing the well-being of that patient.
(a) Primary caregivers must be at least 18 years of age.
(b) A patient shall have no more than four people at any one time acting as primary caregivers under the provisions of this article.
(c) A patient shall designate his or her primary caregiver(s) acting under the provisions of this article in writing.
(d) Primary caregivers may acquire, cultivate, possess, transport, or distribute an adequate supply of therapeutic cannabis intended for use by patients.
(e) A primary caregiver shall not be subject to arrest or prosecution, nor penalized in any manner, nor denied any right or privilege for the acquisition, cultivation, possession, transportation or distribution of therapeutic cannabis for use by a patient in conformance with the provisions of this article.
(f) A copy of the patient’s recommendation from a physician advising therapeutic cannabis use or a copy of the patient’s pertinent medical records along with a document designating the person as a primary caregiver shall be prima facie evidence that the primary caregiver is in conformance to the provisions of this article.
Section 7. Unlawful Acts.
(1) This article does not provide for any person under 18 years of age to use, acquire, cultivate, possess, transport, or distribute therapeutic cannabis unless they meet the requirements as minor patients to be set forth by the commission pursuant to Section 9 (4) (b) of this amendment.
(2) It shall be unlawful for any person to intentionally and willfully misrepresent their status under this article as a patient or primary caregiver.
Section 8. Formation of Commission - Governor Appoints - Qualifications
– Senate Confirmation.
(1) The Colorado therapeutic cannabis commission is hereby formed and will be composed of seven members. Each is to be appointed by the governor to serve a term of office of four years, except as provided in subsection (3) of this section. Potential appointees must be residents of Colorado and must meet the following qualifications:
(a) One appointee shall be a person who has benefited from the use of therapeutic cannabis at some time to treat an adverse medical condition.
(b) One appointee shall have had experience acting as a primary caregiver for a seriously ill person.
(c) One appointee shall be a physician licensed to practice in Colorado.
(d) One appointee shall have at least five years’ experience in a field related to public health.
(e) One appointee shall have at least five years’ experience in a field related to law or law enforcement.
(f) One appointee shall have at least five years’ experience in the public advocacy of therapeutic cannabis.
(g) One appointee shall be chosen at large at the discretion of the governor whom he/she believes will best represent the state of Colorado in the implementation of the Compassionate Therapeutic Cannabis Act.
(2) Each appointee shall be confirmed by a majority of the Senate.
(3) The term of office for appointees pursuant to Section 8 (1) (d), (e), and (f) shall be three years for the first set of appointments only. Thereafter all appointments shall serve a term of four years pursuant to Section 8 (1).
(4) The governor shall make the first set of appointments no later than January 15, 1999. The Senate shall confirm the commission no later than April 15, 1999.
(5) The commissioners shall serve as volunteers, unless otherwise provided for by law.
Section 9. Commission Duties and Responsibilities.
(1) (a) The commission is charged with carrying out the directives and guidelines of the Compassionate Therapeutic Cannabis Act.
(b) The primary agenda of this article, and therefore the commission, is to allow compassionate therapeutic cannabis use by patients.
(2) (a) The commission shall determine provisions and issue licenses
for operation of therapeutic cannabis dispensaries, as defined in Section
2 of this article.
(b) Provisions shall include, but are not limited to:
(I) qualifications for patients and primary caregivers who may obtain therapeutic cannabis from the dispensary;
(II) requirements for ensuring only qualified patients or their primary caregivers obtain therapeutic cannabis from a dispensary;
(III) qualifications for the granting or denial for licenses;
(IV) duration of licenses;
(V) bases for suspending or revoking licenses;
(VI) bases for appeal of denial, suspension, or revocation of licenses;
(VII) ensuring the safety and welfare of patients and the public is held of paramount importance;
(VIII) ensuring patients can obtain an affordable and adequate supply of therapeutic cannabis;
(IX) ensuring strict confidentiality of any information or medical records supplied by patients is maintained to ensure a patient’s privacy.
(3) The commission shall make recommendations to the general assembly
necessary to enact and enforce the provisions of this article. These
recommendations shall include, but not be limited to, recommendations for:
(a) determining offenses and penalties for violation of the provisions or intent of this article;
(b) determining any restrictions on therapeutic cannabis that may be necessary to protect the public safety, such as authorizing behavior testing for drivers and pilots to determine impairment due to therapeutic cannabis use.
(4) The commission shall promulgate rules to implement and enforce the
provisions of this article. These rules shall include, but not be
(a) provisions for licensing, pursuant to subsection 2 of this section;
(b) requirements for therapeutic cannabis use by minor patients under 18 years of age, including provisions for adequate parental control and notification of therapeutic cannabis use.
(5) The commission may make recommendations to the governor of persons to be considered for pardon or reprieve who were convicted, prior to the enactment of this article, of a non-violent offense related to the use of cannabis as a medicine.
(6) The commission shall file an annual report to the governor and general
assembly on or before the second Tuesday in January each year. The
first report shall be due in January 2000.
(a) The report shall include recommendations for any statutory changes necessary to implement and enforce the provisions of this article.
(b) The report shall indicate the degree of compliance by federal and state agencies, non-profit corporations, or any other entities dealing with therapeutic cannabis.
(c) The report may include recommendations for research programs designed to gather information or answer questions about therapeutic cannabis use by patients.
(d) The report shall make recommendations to establish adequate funding levels to achieve the goals of this article.
(7) The commission shall promulgate rules that are necessary to implement this article, pursuant to the State Administrative Procedures Act of the state of Colorado.
(8) The commission will establish discussions between federal government agencies, state government agencies, and other parties in interest, to establish a cohesive transition where conflict of law may exist.
(9) The commission may in its duties find it necessary to promulgate rules or the general assembly may find it necessary to promulgate statutes, or other forms of law, to further assist the commission's constitutional duties.
(10) The commission is given the power and the duty to promulgate rules, pursuant to responsibilities set out in this article.
(11) The commission shall have the power to issue subpoenas, hold hearings, compel testimony, and hire experts in various disciplines.
(12) The commission shall have the power to require reasonable licensing fees for therapeutic cannabis dispensaries.
(13) At its first meeting, the commission shall establish the guidelines for its meetings, including frequency of meetings, procedures, and other administrative functions.
(14) The commission shall fill vacancies in the commission by a majority vote for the remainder of the vacated term.
(15) The commission is required to establish initial rules and regulations within 180 days after its first meeting to begin the implementation this article.
(16) It is the duty of the commission, and the commission is vested with the authority, to implement this article.
Section 10. Attorney General - Chief Enforcement Officer of the State
- Requirement to Make Recommendations for Enforcement to Governor and General
(1) The attorney general is the chief enforcement officer of the state and has the duty to enforce this article.
(2) The attorney general shall make timely recommendations to the general assembly and the governor to assist those bodies in the promulgation of statutes or rules and establish enforcement regulations to enact the goals of this article.
(3) (a) The attorney general shall establish guidelines for law enforcement
officers for establishing probable cause that the provisions of this article
have been intentionally violated.
(b) The purpose of these guidelines shall be to eliminate as much as possible the prosecution or persecution of patients for lawful therapeutic cannabis use and to enable immunity from prosecution as described in Section 5 (1).
(4) The attorney general shall, upon written notification of the commission, assist the commission with recommendations to promulgate effective rules and regulations to achieve the goals of this article.
Section 11. Governor - Chief Executive Officer - Duty to Execute
(1) The governor, as the Chief Executive Officer of the state, has the duty to execute and enforce this article.
(2) Upon written notification of the commission, the governor shall assist the commission in its constitutional duties to carry out the goals of this article.
(3) The governor shall work closely with the commission and its recommendations to implement this article.
(4) The governor may appoint a board, commission, or other government agency, to advise and assist in the implementation of Section 2 (6) and Section 4 (h), which permit the production of industrial hemp.
(5) The governor may grant reprieves or pardons, pursuant to Article IV, Section 7 of the state constitution, to persons recommended by the commission, pursuant to Section 9 (5) of this article.
Section 12. General Assembly - Duty to Authorize Funds - Duty
to Assist the Commission -Duty to Promulgate Statutes.
(1) The general assembly shall provide from the state treasury adequate funding levels to the commission, sufficient to accomplish the goals of this article. These expenditures shall not ultimately exceed revenue from licensing of therapeutic cannabis dispensaries, unless otherwise provided for by law. The commission shall make timely recommendations to the general assembly to establish adequate funding.
(2) Upon written notification of the commission, the general assembly shall render the assistance requested within the laws of the state of Colorado.
(3) The general assembly shall work closely with the commission and its recommendations to enact statutes that would more effectively enforce or otherwise implement the goals of this article.
(4) Upon recommendation from the commission, pursuant to Section 9 (3) (b), the general assembly may enact laws that would restrict therapeutic cannabis use in order to protect the public safety.
Section 13. Other State Government Agencies - Duty to Assist
(1) As this article is first and foremost an amendment to the Colorado state constitution, and all agents of state government must protect and defend that constitution, the Compassionate Therapeutic Cannabis Act is the law of the land that all government agents must protect and defend.
(2) Upon written notification of the commission, any state government
agency or agent shall render the requested assistance within the laws of
the state of Colorado.
Section 14. Executive Officers – Duty to Resign – Subject to Impeachment.
(1) It is the duty of all state executive officers to implement this article, notwithstanding their personal beliefs, and shall carry out their duties as herein provided or as may otherwise be provided for by law.
(2) Should a state executive officer be unable to separate his or her personal beliefs from the implementation of the law, it is that officer’s duty to resign their office.
(3) Failure of a state executive officer to perform their ministerial duties as provided in this article shall subject such officer to impeachment for malfeasance in office pursuant Article XIII of the state constitution.
Section 15. Severability.
If any provision of this article or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this article which can be given effect without the invalid provision or application, and to this end the provisions of this article are declared to be severable.
Section 16. Liberal Construction.
This article shall be liberally construed to achieve the goals of this article.
Section 17. Article Self-Executing.
This article shall be in all respects self-executing; but the general assembly may by law provide for its more effective enforcement.
Section 18. Notification.
Upon passage of this amendment, the governor of the state of Colorado is instructed to inform the President and Congress of the United States of America of this amendment's passage and to urge the repeal of the federal prohibition laws against therapeutic cannabis and to enact federal laws similar to or less restrictive than the provisions of this amendment.
Section 19. Effective Date. Enacted by a vote of the people, November 3, 1998. Effective upon proclamation of the governor.